Legislature considers wider authority for tribal courts

Originally published February 20, 2012 at 5:25 pm
Updated February 20, 2012 at 7:46 pm

Rep. John McCoy

A proposed bill would create a "retrocession" procedure by which a tribe can ask the state to return its jurisdiction over not just criminal, but also civil matters, to the federal government and the tribes themselves. The state would still have jurisdiction over sexually violent predators.

YAKIMA — Lawmakers in Washington are considering a proposal to start dismantling the state’s civil jurisdiction over American Indians, a step many consider long overdue. But some say they worry that restoring full sovereignty to tribes over their members might subject outsiders to unfair treatment in tribal courts.

Congress passed a law delegating jurisdiction over tribes to some states in 1953, at a time when the government was forcing Indians to assimilate. The law was sparked in part by public demand for improved law enforcement on reservations and a desire to offload financial burdens in the wake of World War II.

States such as Nebraska and Oregon have unraveled parts of the federal mandate in the years since. In Washington, the idea has garnered broad support after a series of meetings last year by a task force that included law enforcement, prosecutors and representatives of counties and cities.

Some people, though, fear tribes may fail to ensure due process for everyone, given a perceived lack of separation between executive and judicial branches in some tribal governments. Some observers contend state courts must remain an option to settle disputes.

Jack Yearout spent months trying to get a parenting plan approved by the tribal court of the Yakama Nation, the state’s largest tribe, which resides on a sprawling reservation east of the Cascades.

Yearout is an enrolled member of the Nez Perce tribe in Idaho. The mother of his 5-year-old daughter, meanwhile, has ties to the Yakama Nation.

After several rulings in his favor, allowing him to visit his daughter, the Yakama Tribal Council adopted a resolution last summer stripping authority over child-custody cases from the Yakama tribal courts, an example of an executive branch removing authority from a judicial branch.

“I support tribal sovereignty, but in my case I didn’t get due justice from the tribal court,” Yearout said.

The federal law mandated civil and criminal jurisdiction over tribes in six states and authorized several others to assume jurisdiction if they chose. Washington did so in 1963, assuming state involvement in such matters as juvenile delinquency, truancy, mental illness and adoption proceedings and enabling state courts to hear cases involving Indians.

Tribes have long considered the law a breach of the treaties guaranteeing their sovereignty.

Significant effort has been made in recent years to improve law enforcement and court systems on reservations, and Washington already has returned criminal jurisdiction to some tribes.

The proposed bill creates a “retrocession” procedure by which a tribe can ask the state to return its jurisdiction over not just criminal, but also civil matters, to the federal government and the tribes themselves. The state would retain jurisdiction over sexually violent predators.

Retrocession allows tribes to be treated like sovereign governments, as they were promised, and it allows states to pass budget burdens off on another government entity, just as occurred decades ago, said Carole Goldberg, professor at the UCLA School of Law.

Goldberg also noted that tribes often win federal grants and assistance that states don’t qualify for, which could improve services in a local community.

Democratic state Rep. John McCoy, the bill’s sponsor and a member of Washington’s Tulalip Tribes, said the biggest concerns about the bill have centered on whether the non-Indian community is losing any rights.

“Tribes have co-jurisdiction now, and it’s not your decision on whether tribes get retrocession,” he said. “It’s like we’re the child, and the non-Indian government is the parent.”

About a half-dozen Washington tribes testified in favor of the bill, including the Yakama Nation.

Yakama Tribal Council Chairman Harry Smiskin did not return telephone calls about the bill. However, in a House committee hearing, he said it allows for cohesive law enforcement among tribes and local and state agencies.

He did not address civil jurisdiction.

“This gives members of the Yakama Nation pride in their government again,” Smiskin said. “It says there is a true government-to-government relationship with the state of Washington.”

The proposal is widely expected to pass the Legislature.

Gregoire in favor

The governor’s office participated in the task force last year, and Gov. Chris Gregoire supports giving tribes a process to request retrocession, spokeswoman Karina Shagren said, adding that the legislation provides no guarantee that retrocession will occur and requires the governor’s approval of each request.

Yearout, the Idaho father, ultimately filed suit in state court, where a judge ordered the two sides into mediation. Last month, they agreed on a parenting plan, which was filed in tribal court and enforceable in state court.

The Yakama Nation also ended up abandoning its child-custody resolution.

Yearout said he was pleased to have the case behind him and to spend time with his daughter, but said, “I did everything I could to get a decision from Yakama tribal court, but the tribal council got involved.”

Several attorneys, who have had cases before Washington tribes but declined to speak on the record, raised concerns about political intervention in tribal courts, particularly in family court matters. Some contend tribes need to adopt constitutional amendments that better protect against such occurrences.

More discussion urged

Rep. Bill Hinkle, R-Cle Elum, said he opposes the bill, in part because of those concerns, but also because he believes it requires more discussion.

“There are valid concerns about the impact on nontribal members,” he said. “This is an issue that needs to be discussed over a period of years, now pushed through a short session.”

There’s no denying that tribal constitutions provided to tribes by the Bureau of Indian Affairs in the 1930s did not provide for a clear separation of powers, and it probably behooves them to consider amending those constitutions to fix that oversight, said Rob Roy Smith, Seattle University adjunct professor of federal Indian law.

But having a tribal executive body step in to overrule a court decision is no different from Congress passing a law to overturn a federal court ruling, or the Legislature passing a law that overturns a state court, he said.

“Tribal courts have become extremely sophisticated over the last decade, and they are more than competent to hear the disputes that are currently being heard in state court,” Smith said. “No one is going to get railroaded in tribal court.”